Thursday, March 14, 2013

India has an internet problem

In a discussion on withdrawing the controversial Section 66A
of the Information Technology Act 2000, member of parliament from Karnataka, M.
Rama Jois, proclaimed that, “this law was passed in a hurry and we are worrying
at leisure!” Hurry is putting it loosely. On the last day of the Winter Session
of the Lok Sabha (India’s lower house of Parliament) in December 2008, seven bills
were passed in seven minutes, without any discussion on them.

Section 66A, as has been widely
reported, allows for “punishment for sending offensive messages through
communication service”, which include messages that cause annoyance,
inconvenience, danger, obstruction, insult, injury, criminal intimidation,
enmity, hatred and even ill will. As a result, there have been arrests across
India on the basis of a Facebook
update, tweet
and even sharing
a cartoon online. Experts have panned Section 66A across India, and student
led Public Interest Litigation (PIL) challenged
its constitutionality in the Supreme Court stating that Section 66A
curbs freedom of speech and expression and violates Articles 14, 19 and 21 of
the Constitution. In response, the government issued
an advisory asking state governments not to allow police to make arrests
using this section unless authorized by a senior officer, both at city and
district levels.

The court of public
opinion has been firmly against the government’s position that the enforcement
agencies are to blame for misuse of Section 66A, not the wording of the IT Act.
In an interview
in November 2012, the Minister for Information and Technology, Kapil Sibal
categorically stated, “there is nothing unconstitutional about the
Section.”

However, a host of civil society actors and politicians have
continued to challenge this school of thought. In his Private Members Bill in
the Lok Sabha, Member
of Parliament Jay Panda has stated that within Section 66A, “clause (a) of
Section 66A uses expressions such as ‘grossly offensive’ and ‘menacing’ which
are not only impossible to define but also highly subjective byindividual
standards. Clause (b) prescribes penalties for offences such as ‘annoyance’,
‘criminal intimidation’, ‘insult’ and promoting ‘hatred’ or ‘ill- will’ between
groups. Prescribingthe same punishment
for ‘annoyance’, as well as ‘criminal intimidation, by bundling of disparate
terms within the same clause is bound to lead to confusion and misuse.”

Similarly,Pranesh Prakash of the
Center for Internet and Society called Section 66A “patently
in violation of Art. 19(1)(a) of our Constitution.” In a detailed
note, he explains that the origin of Section 66 A(c) –“for the purpose of
causing annoyance or inconvenience or to deceive or to mislead the addressee or
recipient about the origin of such messages” --can be found in the then Minister A. Raja’s desire to respond to an
observation by the Standing Committee on Information Technology that the Act in
its current state did not have any provisions for spam. If this is indeed the
case, as was suggested during an Index event in New Delhi by panelist Ajit
Balakrishnan, founder of web portal rediff.com and part of an expert committee
that worked on the Information Technology Bill, when he said, “government
officials have genuine problems with phrasing,” then clearly the problem
with the Bill lies in its language. However, he has also reasoned that the Bill
was passed
without debate as it was in Parliament only a month after the 2008 Mumbai
terror attacks, because it gave the state “requisite power” to deal with
Information Age challenges.

This March, the discussion in the Rajya Sabha (Upper House)
of Minister of Parliament, P. Rajeev’s Private Member Bill to withdraw Section
66A revealed very interesting aspects of both sides of this debate. One of the
main criticisms this section has faced is that it puts harsher punishments for
the same crime committed offline. For example, under the Indian Penal Code (IPC), the charge
of defamation carries a maximum jail sentence of two years in contrast to
the three years Section 66A carries for the same offence. There are other
examples. However, in his rebuttal, Information and Technology Minister, Kapil
Sibal, stated
in the house that, “the print media gets extinguished. You read the
newspaper the next day, and it is over. The social media is a continuing
process. You will have that byte on the site for months. In a sense, it is a
continuing offence, not so in the print media. It has a life of its own, not so
in the print media. So, should the same norm be applied to the social media as
we do in the real world?”

Taking on the government’s suggestion that the main problem
with Section 66A lies in its proper implementation, MP R. Chadrasekhar told
the House, “to say that it is only a law enforcement implementation
problem, is mischaracterizing the problem. Of course, there is the issue of
abuse by agencies, as recent incidents have shown. The police machinery is not
equipped with legal tools to interpret the statutes in online speech cases and
cave in to political pressure often.” However, Vice Chairman Dr. E.M. Sudarsana
Natchiappan, countered this thought with his defence of the Section, saying
that misuse of all laws take place and “therefore, what one can do is,
one can, somehow, rectify the approach of those who execute the law rather than
deleting those Sections from the Statute Book.”

The robust debate led to P. Rajeev withdrawing
his Resolution as Minister Kapil Sibal assured the House that the resolution will
be taken up after the Supreme Court of India rules on the Public Interest
Litigation currently challenging the Section 66A.

Over four years after the Act was passed, and countless arrests
and misguided
blocking of websites later, Section 66A lies firmly in place in India law.
If the government holds its position that Section 66A is constitutional and
needs only proper enforcement, then there is something to worry about. Some
experts, like Ajit Balakrishnan, believe it takes 25
years for the police at the lowest level to understand the workings of any
law, and according to the Indian government itself, the entire country will be
connected to the internet well
before then. Perhaps, the Supreme Court really is the last hope; else this
debate can be expected to snowball in the coming years.